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Civil Rights/Affirmative Action


Frequently Asked Questions


Q. What are the fundamental concepts of Environmental Justice (EJ)?
A. The three fundamental EJ concepts are to:
  • avoid, minimize, or mitigate disproportionately high and adverse human health or environmental effects, including social and economic effects, on minority and low-income populations.
  • ensure the full and fair participation by all potentially affected communities in the transportation decision-making process.
  • prevent a denial, reduction, or significant delay in the receipt of benefits by minority and low-income populations.
Q. What is Title VI of the Civil Rights Act of 1964?
A. Title VI of the 1964 Civil Rights Act prohibits discrimination on the basis of race, color, or national origin in programs and activities supported by Federal funding. It specifically states: “no person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.” 42 USC §2000d

Title VI prohibits discrimination whether the form is intentional or whether the unintended effect is unduly burdensome to the recipient.

Q. Who is a minority as defined by Title VI and Environmental Justice?
A. The United States Depart of Transportation (USDOT) Order 5610.2 on Environmental Justice defines minority in the Appendix under Definitions and provides clear definitions of the four minority groups addressed by the Executive Order.
  • Black or African American: a person having origins in any of the black racial groups of Africa.
  • Hispanic: a person of Mexican, Puerto Rican, Cuban, Central or South American, or other Spanish culture or origin, regardless of race.
  • Asian American or Pacific Islander: a person having origins in any of the original peoples of the Far East, Southeast Asia, the Indian subcontinent, or the Pacific Islands.
  • American Indian or Alaskan Native: a person having origins in any of the original people of North America and who maintains cultural identification through tribal affiliation or community recognition.
Q. What is the relationship between the USDOT and the Federal Highway Administration’s (FHWA) orders on Environmental Justice and Title VI and the New Jersey Department of Transportation (NJDOT)?
A. The USDOT Order 5610.2 (1997) clarifies and reinforces Title VI responsibilities and addresses effects on low-income populations; the FHWA Order 6640.23 (1998) support Executive order 12898.

This proactive approach by USDOT and FHWA to the implementation of Title VI will reinforce compliance with other related requirements, such as the National Environmental Policy Act (NEPA) of 1969, 23 U.S.C. 109 (h), which addresses the social and economic impacts of statewide and metropolitan planning.

To achieve the goals of these orders, NJDOT must ensure that disproportionately high and adverse effect on minority and low-income populations do not exist in programs, policies, and other activities. Therefore, NJDOT must implement both Title VI and NEPA while developing and carrying out its transportation activities.

Q. What are the legal bases for addressing the concerns of low-income populations?
A. NJDOT’s planning regulations, 23 C.F.R. 450, require metropolitan planning organizations (MPOs) and states to "seek out and consider the needs of those traditionally underserved by existing transportation systems, including, but not limited to, low-income and minority households."

The National Environmental Policy Act (NEPA) and FHWA 23 U.S.C. 109(h) require that any impacts on communities, including low-income communities, must be routinely identified and addressed.

Q. Why is NEPA important?
A. NEPA establishes a national environmental policy and provides a framework for environmental planning by federal agencies who conduct environmental reviews to consider the potential impacts on the environment. The lead federal agency, the FHWA, works cooperatively with other federal and state agencies during the review process. Executive Order 13274, signed in 2002, emphasizes the importance of expedited transportation project delivery while being good stewards of the environment.

Q. How should Environmental Justice be addressed in the NEPA process?
A. Environmental Justice should be considered and addressed in all NEPA decision making and in Environmental Impact Statement (EIS), Environmental Assessment (EA), Categorical Exclusion (CE), or Record of Decision (ROD) documentation.

The Executive Order and the accompanying Presidential Memorandum call for specific actions to be directed in NEPA-related activities. They include:
  • analyzing environmental effects, including human health, economic, and social effects on minority populations and low-income populations when such analysis is required by NEPA;
  • ensuring that mitigation measures outlined or analyzed in EA, EIS, and ROD documents, whenever feasible, address disproportionately high and adverse environmental effects or proposed actions on minority and low-income populations;
  • providing opportunities for community input in the FHWA NEPA process, including:
    • identifying potential effects and mitigation measures in consultation with affected communities; and
    • improving accessibility to public meetings, official documents, and notices to affected communities.
  • ensuring the Environmental Protection Agency (EPA) has ascertained, as per Section 309 of the Clean Air Act, that other agencies have fully analyzed environmental effects on minority communities and low-income communities, including human health, social, and economic effects.
The FHWA will issue additional assistance on how to address Environmental Justice in the NEPA process in a forthcoming publication.

Q. Must Title VI and Environmental Justice be considered ONLY on projects requiring an EIS?
A. No. Title VI and Environmental Justice applies to all planning and project development programs, policies and activities. In project development, environmental justice should be considered in all decisions whether they are processed with an EIS, an EA, a CE, or a ROD.

Potential impacts on both human and the natural environments should be considered when making Environmental Justice processing decisions.

Q. When does consideration of Title VI and Environmental Justice on a project begin and when does it end?
A. The scoping stage in the NEPA process provides early identification of public and agency issues and state transportation departments should consider Title VI and EJ. They should identify minority and low-income populations as early as possible and their concerns should be examined and addressed, preferably in the planning stages of the project.

The nondiscrimination requirements of Title VI extend to all programs and activities of state transportation departments and their respective sub-recipients and contractors. Therefore, the concepts of Environmental Justice apply to all state projects, including non-federally-funded projects, advance construction or design build.

Because communities are constantly changing, human impacts must be re-evaluated throughout planning, project development, implementation, operation, and maintenance. Mitigation of any sort can cause negative or positive impacts. Be aware of who is being impacted and how it is happening.

Q. Do all impacts have to be evaluated for Title VI and Environmental Justice, or just for health and environmental impacts?
A. All reasonably foreseeable adverse social, economic, and environmental effects on minority and low-income populations must be identified and addressed. As defined in the Appendix of the USDOT Order, adverse effects include, but are not limited to:
  • bodily impairment, infirmity, illness, or death;
  • air, noise, and water pollution and soil contamination;
  • destruction or disruption of man-made or natural resources;
  • destruction or diminution of aesthetic values;
  • destruction or disruption of community cohesion or a community's economic vitality;
  • destruction or disruption of the availability of public and private facilities and services;
  • vibration;
  • adverse employment effects;
  • displacement of persons, businesses, farms, or nonprofit organizations;
  • increased traffic congestion, isolation, exclusion, or separation of minority or low-income individuals within a given community or from the broader community; and
  • denial, reduction, or a significant delay in the receipt of the benefits of DOT programs, policies, or activities.
Q. What is considered low-income for purposes of Environmental Justice?
A. The FHWA Order 6640.23 defines low-income as "a household income at or below the Department of Health and Human Services (HHS) poverty guidelines."

The HHS poverty guidelines are used as eligibility criteria for the Community Services Block Grant Program and a number of other Federal programs. However, a State or locality may adopt a higher threshold for low-income households as long as the higher threshold is not selectively put into practice and includes all persons at or below the HHS poverty guidelines.

Q. Should discussions about populations, such as the elderly, children, or the disabled be included when addressing Environmental Justice and Title VI?
A. Yes. Within the framework of Executive Order 12898 on Environmental Justice, the USDOT Order 5610.2 addresses only minority populations and low-income populations, and does not provide for separate consideration of elderly, children, disabled, and other populations.

However, concentrations of the elderly, children, disabled, and other populations protected by Title VI and related nondiscrimination statutes in a specific area, or any low-income group ought to be discussed. Documentation should support group designation as low-income or minority.

For community impact assessment, concentrations of the elderly, children, the disabled, or similar population groups, e.g., female head of household, possibly have experienced exposure to adverse impacts.

Segments of the community, including minority and low-income populations, or an entire community may be impacted. They should be routinely investigated, analyzed, mitigated, and considered during decision making, similar to investigations of impacts on minority populations and low-income populations.

The NEPA requires federal agencies to integrate environmental values into their decision making processes by considering the environmental impacts of their proposed actions and offering reasonable alternatives.

All NEPA processing documentation should:
  • address all impacts to the human and natural environments; and
  • describe any mitigating protections or benefits that would be provided by Federal or State law, or as part of the action.
Additionally, the Age Discrimination Act of 1975, as amended, 42 U.S.C. 6101, et seq. (Title 42, Chapter 76), prohibits discrimination on the basis of age in programs receiving federal financial assistance while handicapped persons are protected by Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. 794 and 49 C.F.R. Part 27.7.

Q. Is there a minimum or maximum size of the minority or low-income population for Environmental Justice?
A. No. Disproportionately high and adverse effects, not size, are the bases for Environmental Justice. A very small minority or low-income population in the project, study, or planning area does not eliminate the possibility of a disproportionately high and adverse effect on these populations.

The comparative effects on minority or low-income populations in relation to either non-minority or higher income populations are the main factor in the decision for Environmental Justice.

Some people wrongly suggest that if minority or low-income populations are low, or statistically insignificant, there is no Environmental Justice consideration. While the minority or low-income population in an area may be low, there still may exist a disproportionately high and adverse effect of a proposed action. Environmental Justice determinations are made based on effects, not population size. It is important to consider the comparative impact of an action among different population groups.

Q. Must there be a neighborhood or community of minority, or low-income groups in order for a Title VI and Environmental Justice effect to exist?
A. No. The Executive Order 12898 on Environmental Justice and the USDOT Order 5610.2 on Environmental Justice refer exclusively to populations, while the White House distribution memo refers to both communities and populations. The USDOT Order defines a population as:
  • any readily identifiable group of minority or low-income persons who live in geographic proximity; or
  • geographically dispersed persons, such as migrant workers or American Indians.
Therefore, depending on the context and circumstances, a proposed action could cause a disproportionately high and adverse effect on a population even in cases that lack clearly delineated neighborhoods or communities.

Neighborhood and community boundaries and impacts, however, should be considered in planning, programming, and project development activities, whether or not there are minority or low-income populations involved. Most importantly, the public should always be involved in defining neighborhood and community through the public-involvement process, since the identification or definition of neighborhood and community boundaries can be subjective.

Q. What role does public involvement play in the consideration of Environmental Justice?
A. Public involvement is an integral part of transportation planning and project development decision making. The USDOT Order 5610.2 on Environmental Justice directs NJDOT to provide minority and low-income populations much greater access to information and opportunities for public participation in human health and environmental impacts. The Transportation Equity Act for the 21st Century (TEA-21) also emphasizes the meaningful involvement by the public in transportation decision making.

Effective public involvement in the planning process and the project development process can alert State and local agencies about Environmental Justice concerns so that they do not disrupt the project development stage. Continuous interaction between community members and transportation professionals is critical to successfully identifying and resolving potential Environmental Justice concerns.

State, regional, local, and tribal agencies should have established public involvement procedures for consideration of Environmental Justice that will:
  • provide an inclusive, representative, and equal opportunity for two-way communication resulting in appropriate action that reflects public involvement; and
  • include all aspects of planning and project decision making, the design of both the public-involvement plan and the proposed facility.
Q. What role does community impact assessment play in Environmental Justice?
A. The USDOT Order 5610.2 on Environmental Justice asks whether a proposed action or plan causes disproportionately high and adverse effects on minority populations and low-income populations, and whether these populations are denied benefits. Community impact assessment provides a framework of analysis that can determine how a proposed action or plan could differentially impact different populations is required.

Like public involvement, community impact assessment is an integral part of planning and project development and can evaluate the effects of a transportation action on a community and its quality of life. The resulting information should be used to mold the plan and its projects, and provide documentation about the current and anticipated social and economic environment of a geographic area with and without the proposed action. The assessment process steps are to:
  • define the project, study, and planning area;
  • develop a community profile;
  • analyze impacts;
  • identify solutions;
  • use public involvement; and
  • document findings.
FHWA expanded on these steps in their publications: Community Impact Assessment: A Quick Reference for Transportation, and its companion document, Community Impact Mitigation: Case Studies, published in 1998.

Q. Is technical assistance or a list of resources available on Environmental Justice?
A. FHWA's Web site provides a summary of the USDOT and the FHWA orders, as well as a list of available technical assistance, resources, and contacts on Environmental Justice and Title VI.

One of these resources is the FHWA brochure Overview of Transportation and Environmental Justice, which provides a cogent summary of Environmental Justice in a single, easy-to-read format. The brochure defines Environmental Justice and discusses how transportation partners, including the public, can support and integrate Environmental Justice and Title VI in transportation decision making. Products in development include case studies and effective practices and will become a part of this Web site.

 
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  Last Updated:  April 14, 2010